May VERBOORT as Widow and Executor of the Estate of Gerhard Johannes VERBOORT (Dec'd) v James Hardie and Coy Pty Ltd - [2000] WADC 330

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: MAY VERBOORT as Widow & Executor of the Estate of GERHARD JOHANNES VERBOORT (Dec'd) -v- JAMES HARDIE & COY PTY LTD [2000] WADC 330

CORAM: LA JACKSON DCJ

HEARD: 13 DECEMBER 2000

DELIVERED : 13 DECEMBER 2000

PUBLISHED : 14 DECEMBER 2000

FILE NO/S: CIVO 173 of 2000

BETWEEN: MAY VERBOORT as Widow & Executor of the Estate of GERHARD JOHANNES VERBOORT (Dec'd)
Applicant
AND
JAMES HARDIE & COY PTY LTD
Respondent

Catchwords:

Limitation of actions - Fatal Accidents Act - Application to bring an action - Material prejudice

Legislation:

Fatal Accidents Act 1959, s 7

Result:

Leave granted to bring action

Representation:

Counsel:

Applicant: Mr A C Dimsey
Respondent: Mr B J H Goetze

Solicitors:

Applicant: Slater & Gordon
Respondent: Minter Ellison

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Black v City of Melbourne [1963] VR 34
CSR Ltd v Culkin, unreported; FCt SCt of WA; Library No 94570; 18 October 1994
Davey v West Australian Coastal Shipping Commission & Ors, unreported; SCt of WA; Library No 7983; 5 December 1989
Duke & Anor v CSR Ltd, unreported; SCt of WA; Library No 8632; 6 December 1990
Payne v Architectural Ceilings Systems Pty Ltd [2000] WADC 271

LA JACKSON DCJ: This is an application for leave pursuance to the Fatal Accidents Act 1959 to commence proceedings. On 13 December 2000 I made the following orders:
1.The plaintiff is granted leave pursuant to s 7(2) of the Fatal Accidents Act 1959 to commence proceedings outside the time provided in s 7(1) of the Fatal Accidents Act 1959. Such proceedings to be commenced within 30 days of the date of this order.
2.The costs of this application be costs in the cause of the proposed substantial proceedings.
These are my reasons for making those orders.
The plaintiff is the widow of and the executor of the estate of the late Gerhard Johannes Verboort who died on 5 January 1996. It is claimed the deceased was employed by the defendant in the 1950's and otherwise employed using products made by the defendant. Such work and such products contained asbestos. It is claimed the deceased through inhaling asbestos dust during such work contracted asbestosis. He was diagnosed as having asbestosis in 1988 and subsequently died. It appears that he was also a smoker and there is an issue as to the cause of death.
Section 7 of the Fatal Accidents Act refers to the commencement of proceedings under that Act. Subsection (1) provides for action to be commenced within 12 months after the date of death. Subsection (2) provides for a prospective defendant consenting to the bringing of such an action within 6 years or for the giving of leave to commence such an action within that time. Section 7(2)(c) and (d) provide:
"(c)Notwithstanding the foregoing provisions of the section, application may be made to the Court for leave to bring an action at any time before the expiration of 6 years from the date of the death of the person in respect of whose death the cause of action arose.
(d)When the Court considers that the delay in bringing the action was occasioned by mistake or by any other reasonable cause or that the prospective defendant is not materially prejudiced in his defence or otherwise by the delay, the Court may if it thinks it is just to do so, grant leave to bring the action subject to such conditions as it thinks it is just to impose."
It appears that on 15 September 1995 the defendant was advised by the deceased of a workers' compensation claim. Three and a half months later on 5 January 1996 he died. By letter of 9 May 1997 the plaintiff's solicitors advised the defendant of the intention to claim pursuant to the Act. There followed some correspondence proposing discussions with a view to settling both workers' compensation and common law claims. That conference was held on 9 April 1998 but did not resolve the matter. By letter dated 4 May 1998 the plaintiff's solicitors wrote to the defendant's solicitors in the following terms:
"We note that at that conference the possibility of pursuing a workers' compensation claim on behalf of our client was canvassed and we sought your client's undertaking that if our client's common law claim is held in abeyance pending investigation of the position regarding a workers' compensation claim and an application is later brought to issue common law proceedings on behalf of our client, your client will not oppose our client's application for leave to commence proceedings on the basis of such delay. We note that you undertook to advise as to your client's position in this regard and we look forward to hearing from you as soon as possible."
By letter dated 11 May 1998 the defendant's solicitors replied in a without prejudice letter:
"We advise as follows:
(a)Our client will not raise as an issue at any subsequent application for a grant of leave to commence proceedings, any delay by your client in bringing that application from the date of the informal conference on 9 April 1998 to the date of the application;
(b)Our client reserves its position with regards to delay from the date of the deceased's death to the date of the informal conference, subject to your client providing affidavit evidence as to the reason or reasons for that delay; and
(c)Our client's position with regards to a grant of leave is likely to be influenced by the position taken by other parties which may ultimately be involved in this matter."
Although there may have been some further negotiations the matter was not resolved. Nothing appears to have happened until on 15 August 2000, more than 2 years later, a further letter of demand was sent by the plaintiff's solicitors to the defendant (not its solicitors) as a result of which on 12 October 2000 the originating summons the subject of decision was issued.
At the outset the plaintiff argues that the letter from the defendant's solicitors dated 11 May 1998 estops the defendant from arguing it is prejudiced by any delay after the date of the informal conference on 9 April 1998. I do not accept that argument. Clearly the correspondence contemplated further investigation of a workers' compensation claim and ongoing negotiations which if unsuccessful would result in an application being made. I consider it was implicit that the plaintiff would proceed with some expedition. There has been an inordinate and unexplained delay. I do not accept that was really what was contemplated by the parties and would think it unfair for the defendant to be held to what is arguably an open ended undertaking.
For the plaintiff to succeed there are three criteria to be addressed:
1.Was the delay in bringing the application occasioned by mistake or by any other reasonable cause?
2.Alternatively, has the defendant been materially prejudiced in its defence or otherwise by the delay?
3.As a matter of discretion, is it just for the Court to grant leave to bring the action?
The plaintiff does not seek to justify the delay by arguing it was caused by mistake or any other reasonable cause. It argues solely that the defendant has not been materially prejudiced by the delay.
An action can be brought under the Fatal Accidents Act within 12 months of the date of death without leave. The plaintiff therefore had until 5 January 1997 to commence proceedings against the defendant for damages. This application has been brought in August 2000, some 3½ years later. It is this period of 3½ years that is the relevant period to be considered. Is the defendant materially prejudiced in its defence or otherwise by that delay? There is an evidentiary burden on the defendant to show prejudice. By an affidavit of Jacqueline Marie Kubacz sworn 4 December 2000 she, on behalf of the defendant, disclosed the following:
"Further, the defendant is materially prejudiced by the delay in that:
(a)it is now unable to independently confirm the deceased's diagnosis;
(b)it is unable to determine whether the deceased's smoking caused or contributed to his lung cancer and ultimate death;
(c)it is unable to ascertain the nature and extent of the deceased's alleged exposure to asbestos from the deceased;
(d)it is unable to verify the deceased's employment at any of the places whee the plaintiff alleges the deceased worked, apart from the defendant. In this regard, annexure 'JMK1' reveals that the deceased worked for the defendant, Big Bell Consolidated, Hill 50 Mine NL and for Ajax Plaster Company Pty Ltd at each of which the deceased had exposure to asbestos;
(e)`Big Bell commenced mining in 1932 and closed in 1955. The mine was reopened in 1989. Annexed hereto and marked 'JMK9' is copy of Big Bell Mine profile. The plaintiff alleges that the deceased worked at Big Bell in 1957 and was exposed to asbestos;
(f)although Hill 50 Mine is still in operation and it has records dating back to 1955‑1957, it has no record of the deceased ever having worked there;
(g)Ajax Plaster Company Pty Ltd went into voluntary liquidation in 1976. Investigations carried out on behalf of the defendant have shown that all the independent witnesses who would be able to verify the deceased's employment have passed away.
(h)it is unable to undertake necessary investigations of the deceased's co‑workers to determine levels of exposure and the cause of the deceased's cancer."
I have no doubt that the defendant is materially prejudiced by the delay between the dates of employment or using the defendant's products in the 1950's and now. I also have no doubt that from the date of the original diagnosis of asbestosis in 1988 the defendant is prejudiced by no longer being able to have the deceased medically examined. However the defendant was notified on 15 September 1995, some 3½ months before his death of the workers' compensation claim and had the opportunity to have the deceased medically examined during that time. I accept there was no intimation of any common law claim but, of course, the issues of causation whether for workers' compensation or for a tortious claim are precisely the same. It does not appear that the defendant availed itself of the opportunity of having the deceased medically examined during that period. Immediately after the deceased's death there was an autopsy performed of which a detailed report is included in the Court papers. There is no suggestion that the doctor who conducted the autopsy did so other than in an objective manner.
There is nothing that I have that shows that from the date 12 months after the deceased's death until now there has been any change in circumstances which would indicate a material prejudice to the defendant as a result of the delay for that period. As that is the important period, I find the plaintiff has demonstrated that the defendant has not been materially prejudiced as a result of that delay.
There is nothing in the affidavit material that indicates any level of dependency by the plaintiff upon the deceased. However, I am persuaded, that the extent of any such claim is not a matter that is material to the third question, namely, whether it is in the interests of justice to grant the application. Clearly upon a death an executor will have incurred funeral expenses and even if there is no claim for dependency at all, the recovery of funeral expenses is not something the plaintiff should be deprived of the opportunity of doing.
I had wondered whether this was an appropriate case for costs to be in the cause of the ultimate action or whether costs should be borne by the plaintiff because of the significant delay. However, as counsel for the defendant rightly conceded, it was open to the defendant to have consented to the application and therefore an order that costs be in the cause was appropriate.